Maybe It’s Time to Review the EPA’s Endangerment Finding

My letter in today’s Wall Street Journal responding to the recent misguided WSJ editorial calling for the Trump administration to ignore the Obama EPA’s finding that CO2 endangers the public welfare.

Here’s my letter in today’s WSJ:

Below is the original WSJ editorial:

Highway From the Endangerment Zone
Scott Pruitt is right to avoid a fight over an anti-CO2 EPA finding

Scott Pruitt has emerged as a leading voice in the Trump Administration for U.S. withdrawal from the Paris global climate deal, so it’s ironic that the Environmental Protection Agency chief is being assailed from the right for being soft on carbon. Too many conservatives these days are searching for betrayals where none exist.

As Attorney General of Oklahoma, Mr. Pruitt successfully sued to stop the enforcement of President Obama’s regulations known as the Clean Power Plan, or CPP, and he’s preparing to dismantle them for good as EPA administrator. The rap from the right is that he won’t challenge the underlying determination for regulating CO 2 emissions known as an endangerment finding. In 2009 the EPA concluded in this finding that carbon dioxide and other greenhouse gases pose a threat to public health and the environment, and this document serves as the nominal legal basis for the CPP and other anticarbon rules.

Mr. Pruitt’s critics claim that withdrawing from the CPP without reversing endangerment will strengthen his opponents in the inevitable green lawsuits that are coming. Endangerment findings create a legal obligation for the EPA to regulate the relevant pollutants, even if carbon is far different from traditional hazards like SO X and NO X .

The endangerment finding was deeply misguided and flawed in its execution, and nobody fought it more than we did. But there’s a practical reason that Mr. Pruitt is right about the risks of trying to revoke it now. The finding has been upheld by the courts, and creating a legally bulletproof non-endangerment rule would consume a tremendous amount of EPA resources, especially at an agency with few political appointees and a career staff hostile to reform.

Technical determinations about the state of the science are supposed to be entitled to judicial deference, but the reality is that the D.C. Circuit Court of Appeals that would hear the case is packed with progressive judges. Climate change has become a theological conviction on the left, so Mr. Pruitt would almost certainly lose either with a three-judge panel or en banc.

The Supreme Court’s appetite for such a case is also minimal, since it would run directly at the 2007 ruling in Massachusetts v. EPA that prepared the way for the endangerment finding. Justice Anthony Kennedy was in that 5-4 majority.

Mr. Pruitt is already taking on difficult and controversial challenges, so better for the Administration to use scarce political capital where it will make a difference instead of burning it on a doomed mission. The endangerment finding doesn’t dictate any specific regulation, and Mr. Pruitt has the discretion to interpret the Clean Air Act to achieve his favored policy outcomes, including to repeal legally tenuous central planning like CPP.

A future Democratic President could use the endangerment finding to revive something like CPP, but then that same Administration could restore endangerment too. Mr. Pruitt is a natural target for the left, but when conservatives are impugning one of the leaders of President Trump’s economic deregulation project as a sellout, maybe the problem is the critics, not Mr. Pruitt.

Appeared in the Apr. 19, 2017, print edition.

4 thoughts on “Maybe It’s Time to Review the EPA’s Endangerment Finding”

  1. Try as they might , the warmists only response has been in telling us the science is settled . What science would that be ?? Political Science . They still cannot make the case for man made climate change with any validity, and to date will not debate the issues to substantiate those claims . Those are the facts . Empirical Evidence trumps computer modelling every time .

  2. Interesting that the WSJ says that removing the EF would be open to legal challenge and therefore be hard, yet repealing the CPP without removing the EF would be subject to lots of legal challenges which it then dismisses! Wanting it both ways?

    Removing the EF is much more long-term as the reason for its removal (poor science) will make it much harder to re-instigate than rules based on the EF which would be easy to re-apply if the EF was left valid. Mass vs. EPA has to be revoked (or whatever it is) and can not be considered a left/right issue as the Justices were working from a faulty scientific standpoint.

    At the same time, people should give Scott Pruitt a break here – it will take time to do what is needed and doing things step by step is not a sellout. CPP would cause direct economic harm so that has to go first, then he can move on to the next step.

  3. The WSJ essentially is challenging the political wisdom of the campaign to withdraw the EF, treating that campaign as if it were merely a matter of political strategy. The WSJ is simply wrong in its assessment. Withdrawing the EF is not simply a matter of political strategy. Rather, the need to withdraw the EF is an existential necessity without which it will be legally impossible to achieve most of the effort to stop future gross over-regulation and to roll back myriad existing regulation of energy and energy-related production, distribution and consumption. These “climate-related” activities are at the heart of our economy, and regulating them is the key to accomplishing total government control of the economy and of daily life in America. Those are the true goals of the climate-change advocates. Environmental protection is mere pseudo-science, a screen behind which they mask their true political motivation. The EF is the heart of the beast. A dagger must be driven through the heart of the beast. EF withdrawal can be readily accomplished through proper rule-making under the CAA and the APA by methodically developing and carefully compiling and clearly articulating a scientific record of decision that can withstand the inevitable legal challenge of the Enviro-Whackos who worship at the alter of a pagan god, scientism. Pruitt should retain a competent environmental consulting firm and skilled outside lawyers to compile such a record, draft the proposed rule and help as advisers to support it in court, relying on a carefully-chosen new crew at DOJ to defend that record in the DC Circuit. That’s how to get the job done. And the job MUST be done. It’s not a option.

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